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HomeMy WebLinkAboutBurgers/Oolo 00-11-24 '.' ... In the Matter of an Arbitration . Between: Ontario Public Service Employees Union & its Local 345 (Union) - and - Peterborough Shared Services Hospitals (Employer) Re: Individual grievances ofKalhy Burgers and Paulette 0010 , ' Arbitrator: Nimal V. Djssanayake Appearances: Maureen Doyle (Counsel) for the Union Robert Hickman (Counsel) for the employer Hearing: November 17, 1999; March 30, 31, June 19 and August 29,2000 at Peterborough, Ontario and November I, 2000 at Mjssissauga, Ontario .. 2 AWARD The grievors, Ms. Kathy Burgers and Ms. Paulette 0010 have each filed a grievance dated August 23, 1996 alleging "I have been incorrectly classified in the recent joint job evaluation;). The classifications presently assigned to the grievors' respective positions were decided upon by a Joint Evaluation Committee consisting of equal numbers of employer and trade union representatives. The employer assigned the classification that resulted from the joint process for each position. The employer and the union had agreed upon an elaborate process called the Gender Neutral Comparison System, for evaluating positions for purposes of classifying arid setting wage. rates. This process included a procedure for appeal from the Conunittee's initial decision. The two grievors had exhausted all of the internal appeal procedures without success before filing the instant grievances. The facts relating to the Job Evaluation Committee and appeal procedures, and the grievors' participation therein are reviewed in detail in the Board's preliminary award dated January 27, 1999. In that preliminary award the Board, inter alia. held that the Job Evaluation Committee and appeal procedures agreed to between the parties was an effort by the parties to initially establish job classifications and rates, and that it was not intended to replace or take away the employees' explicit right under article 19.04 to grieve classifications. The Board further ruled that the union was not restricted to the evidence that was presented to the Joint Evaluation Conunittee. On that basis. the Board rejected the employer's position that these grievances were inarbitrable. I reiterate that as a matter of jurisdiction, the grievors retain their right under article 19.04 to fully arbitrate their grievances. However, I do not agree with the union that the existence ofthe joint job evaluation process and the grievors' participation therein are completely irrelevant. In the ordinary case, it would be the employer's management right to initially classify positions. The onllS of proving that the assigned classification was improper falls upon the grievor and the union, In the present. case, .. m ....... ....... ....._JlQ}Y~y~J,J4~iJl1Pllg[l~cl {:lllssifjc;ati()Ils. \V~re:110 tsetllnilaterallx.bx.t~l~~I~lp!gyef. Ra tllt~r, they"",eE~__..____ ~et jninfly hy lInion Hnd employer representatives pursuant to t1n elt1horate agreed upon process. Tn 3 these circumstances, sound labour relations policy requires that the union must be called upon to meet a higher standard before an arbitrator interferes with the results ofthe joint process. In my view while I do have jurisdiction to arbitrate these grievances, before I interfere with the classifications derived through the joint process to which the union was party, I must be satisfied that the joint committee's assessment which led to the existing classifications was patently wrong. An arbitrator, in these circumstances should be very reluctant to substitute his judgement in place of the judgement made by the joint committee unless the evidence is overwhelming that the committee's assessment was patently wrong. The union does not question the appropriateness of the job evaluation process used by the Joint Committee, whereby each position was evaluated for fourteen different factors. The parties accepted . the factors and the evaluation scheme as appropriate for arriving at an appropriate classification. The dispute is as to what conclusions to draw by applying the criteria- in the process to the grievors' particular jobs. The gdevors testified at length about the duties they perfonned in their respective positions. Their testimony in that regard is uncontradicted. The task is to fit those duties into the appropriate degrees within each category. The difficulty is that the various degrees within a category are not distinct from.one another. Rather, they constitute a continuing range from the lowest degree to the highest. There is significant overlap between the degrees. In the circumstances, perception and subjectivity comes into play in selecting an appropriate degree within a category. Each grievor gave her view of where her own job should properly fit within the range of a category. The union submitted that since the employer called no one to give a contrary view, I shou.ld accept the grievors' assessment of their ownjobs, because they were in the best position to assess their own jobs. In my view my task is not that simple. The grievors were obviously giving their own subjective opinions. In giving those opinions, it is undeniable that they would be influenced by the interest they have in the outcome ofthis arbitration. This is particularly a concern, where their testimony differs from the .... infonuationthey hadp[eyiouslysubmitt~d totWQc01l1Il1iUees.. In c()I1.~!~~ri!!K~J!~!h~r~h~,!~se~sIl1eI1L by the Joint Evaluation Conunittcc was patently wrong, I must cV1'Ihw.te tilt': t':vidt':n(~~, in(~llldillg thf~ ., 4 cross-examination, objectively and in light of the "balance of probabilities" , The grievors' subjective perceptions and opinions are not to be treated as determinative, merely because they were not c'contradicted". . In this regard, a further observation is warranted. I repeatedly heard evidence of "what may happen" as a consequence .of the grievors performance of duties, and about "possibilities". For example, grievor 0010 testified that if she made an error in ordering supplies and/or equipment, it was possible that surgery may have to be cancelled as a result. . Certainly that "possibility" exists. However, it is only a very remote possibility. That does not warrant assigning a high degree of points to the .category of effect of error, as if the grievor's job regularly entailed making decisions that affected patients' well-being. Moreover, on two prior occasions in 1991 and 1994, each grievor had the opportunity to fully describe her duties and responsibilities to two Joint Evaluation Committees. Both grievors are educated and sophisticated individuals. They admitted that they clearly understood that it was very important that complete and accurate infonnation be provided tathe conunittees because that information would form the basis for classifying their positions. The evidence also indicates that they in fact did a thoroughjob in filling out the questionnaire fonns. I do not accept their testimony that time constraints deprived them the opportunity to provide accurate and complete infonnation. To the extent that their testimony at arbitration is inconsistent with the information they provided to the committees, particularly relating to subjective assessments and opinions, I am reluctant to accept that testimony except where it is supported by some tangible evidence showing that the information they provided to the committees previously was in error. With those principles in mind, I turn to the respective grievances by examining whether the degree assigned to any of the factors was patently wrong. 4 S The 0010 grievance Ms. 0010 held the position of Purchasing Assistant in.the Materials Management Department, which was classified as "Clerk-GeneralS II. She seeks re-c1assification as "Clerk -General 6". Her job description was filed in evidence. In making my findings I have considered the job description, in light of the grievor's testimony, including cross-examination, and of course the submissions of the respective counsel. The resulting findings for Ms. Dolo's position are as follows: Factor 1- Education Degree assigned by employer : S Degree sought by union : 5 Finding : Degree S confirmed Factor 2- Experience Degree assigned by employer : 3 Degree sought byunion : 5 Finding : Degree 3 confirmed Factor 3 - Judg~ment Degree assigned by employer : 2 Degree sought by union : 4 Finding: Degree 3 substituted Factor 4 - Effect of Error Degree assigned by employer : 3 Degree sought by union : 5 Finding: Degree 3 confirmed Factor S - Financial Responsibility (A) Annual Budgetary Accountability. Control and Administration. Degree assigned by employer : 1 Degree sought by union : 5B Finding: Degree 1 A substituted (8) Financial Responsibility for Financial Processing Degree assigned by employer : 4 Degree sought by union : 4 Finding: Degree 4 confimled ~ (C) Responsibility for Goods and Equipment Degree assigned by employer : 1 Degree sought by union : 4 Finding: Degree 1 confirmed Factor 6 - Responsibility for Human Resources Degree assigned by employer : 1 Degree sought by union : I Finding: Degree I continned Factor 7 - Confidentiality Degree assigned by employer : 2 Degree sought by union : 3 Finding: Degree 2 confirmed Factor 8 - Contacts Degree assigned by employer : 2A Degree sought by union : 3C Finding: Degree 3C substituted Factor 9 - Multiple demands and deadlines Degree assigned by employer : 2 Degree sought by union : 3 Finding :Degree 2 20nfinned Factor 10 - Responsibility for well-being of patients Degree assigned by employer : 3 Degree sought by union : 3 Finding: Degree 3 confirmed Factor 11 - Physical demand Degree assigned by employer : I Degree sought by union : 2 Finding: Degree 1 confinned Factor 12 - Sensory Demand Degree assigned by employer : 2 Degree sought by union : 3 Finding: Degree 2 confirmed 6 ;. 7 Factor 13 - Environrrient Degree assigned by employer : 2 Degree sought by union : 3 Finding: Degree 2 confirmed Factor 14 - Hazards Degree assigned by employer : 2 Degree sought by union : 2 Finding: Degree 2 confirmed The Burgers grievance Ms. Burgers held the position of Junior Buyer in the Materials Management Department, which was classified as "Clark-General 4". She seeks reclassification as "Clerk-General 6". Her job description was also filed in evidence. In making my findings I have considered the job description, in light of the grievor's testimony, including cross-examination, as well as the submissions of the respective counsel. The resulting findings for Ms. Burgers' position are as follows: Factor" - Education Degree assigned by employer : 4 Degree sought by union : 4 Finding: Degree 4 confirmed Factor 2 - Experience Degree assigned by employer : 3 Degree sought by union : 5 Finding: Degree 3 confirmed Factor 3 - Judgement Degree assigned by employer : 2 Degree sought by union : 4 Finding : Degree 2 confirmed Factor 4 - Effect ofEiTor Degree assigned by employer : 3 Degree sought by union : 3 Finding: Degree 3 confinued ;,.. . . 8 Factor 5 - Financial Responsibility (A) Annual Budgetary Accountability. Control and Administration Degree assigned by employer : ] Degree sought by union : 1 A Finding: ] A substituted (B) Financial Responsibility for Financial Processing Degree assigned by employer : 4 Degree sought by union : 4 Finding: Degree 4 confirmed (C) Responsibility for Goods and Equipment Degree assigned by employer : ] Degree sought by union : 2 Finding: Degree 1 confirmed Factor 6 - Responsibility for Human Resources Degree assigned by employer : ] Degree sought by union : 1 Finding : Degree 1 confinned Factor 7 - Confidentiality Degree assigned by employer : 2 Degree sought by union : 3 Finding: Degree 2 confinned Factor 8 - Contacts Degree assigned by employer : 2A Degree sought by union : 3C Finding: Degree 3C substituted Factor 9 - Multiple demands/deadlines Degree assigned by employer : 2 Degree sought by union : 4 Finding :Degree 2 confinned Factor 10 - Responsibility for well-being of patients Degree assigned by employer : 3 Degree sought by union : 3 Finding: Degree 3 confirmed l' 9 Factor II - Physical demand Degree assigned by employer : 1 Degree sought by union : 2 Finding; Degree I confirmed Factor 12 - Sensory Demand Degree assigned by employer : 2 Degree sought by union : 4 Finding : Degree 2 confirmed Factor 13 - Environment Degree assigned by employer : 2 Degree sought by union : 4 Finding: Degree 2 confirmed Factor 14 - Hazards Degree assigned by employer : 2 Degree sought by union : 2 Finding: Degree 2 confirmed It follows from the foregoing findings that I have found only a very few areas in which interference with the results of the joint evaluation process was justified. The few substitutions that resulted do not warrant a change of classification for either grievor in accordance with the factor point values used in the joint evaluation process and agreed to between the parties. Accordingly the grievances filed by Ms. Dolo and Ms. Burgers are hereby dismissed. Dated this 24111 day of November) 2000 at Hamilton, Ontario. ~~-4 Nimal V. Dissanayake Arbitrator